Radhika Rao · September 2008
76 GEO. WASH. L. REV. 1216 (2008)
Regulating reproductive technologies—the subject of this symposium—is a theoretical issue right now because there is virtually no such regulation in the United States. However, the regulatory vacuum surrounding assisted reproductive technologies (“ARTs”) may not last for much longer. The outcry over human cloning and embryonic stem cell research have enhanced public scrutiny of parallel technologies and led to calls for more oversight of ARTs. After issuing reports on cloning and embryonic stem cell research, President Bush’s Council on Bioethics took on the related topic of assisted reproduction and recommended studies of the effects of ARTs as a preliminary to such regulation. Already, some states such as California have enacted laws that limit the production and use of embryos for the purpose of human embryonic stem cell research (“hESCR”). The disparity between the extensive restrictions imposed upon research embryos and the near absence of regulation of embryos in the context of fertility treatments is too obvious to ignore. Moreover, the Supreme Court’s recent decision upholding a federal ban on partial-birth abortion may also pave the way for more regulation of embryos and fetuses. All of these developments put pressure upon the government to act.
To predict how the United States or various state governments might respond to such pressures to regulate ARTs, we should look abroad. Germany and Italy, in particular, offer instructive examples. In 1990, Germany enacted the Embryo Protection Act, which restricts the creation, implantation, and destruction of external embryos. The Embryo Protection Act makes it a crime to create more embryos than can be transferred to a woman in one cycle and allows no more than three embryos to be implanted in the uterus. It also mandates implantation of all embryos and bans their destruction, effectively preventing genetic selection as well. In addition, although the Embryo Protection Act permits sperm donation, it proscribes even unpaid egg donation and gestational surrogacy. More recently, in 2004, Italy enacted Law 40—one of the most restrictive laws regulating ARTs in the world. Law 40 limits ARTs to married or “stable” heterosexual couples of childbearing age who are infertile. Law 40 permits no more than three embryos to be created at any one time, requires implantation of all extracorporeal embryos, and forbids embryo destruction or even freezing except under very limited circumstances. It also prohibits genetic selection of embryos and gametes, as well as the use of donor sperm, eggs, and surrogacy. Would similar laws be constitutional in the United States?
I argue that there is no general right to use ARTs as a matter of reproductive autonomy, but there may be a limited right to use ARTs as a matter of reproductive equality. Accordingly, the government could prohibit use of a particular reproductive technology across the board for everyone; however, once the state permits use in some contexts, it should not be able to forbid use of the same technology in other contexts. Hence, all persons must possess an equal right, even if no one retains an absolute right, to use ARTs.
Applying this theory, courts need ensure only that restrictions upon reproductive liberty are meted out with a measure of equality. Why provide equal but not absolute rights in the realm of assisted reproduction? The principle of reproductive liberty has no logical stopping point; it confers constitutional protection upon almost every technology that is necessary to procreation. Such an expansive reading of the right fails to distinguish between different categories of regulation and the reasons underlying them. It subjects all laws that restrict reproductive autonomy to strict judicial scrutiny and requires them to be struck down unless necessary to advance compelling governmental objectives. Under this theory, almost every regulation of assisted reproduction would be unconstitutional. Laws that limit the creation, implantation, and destruction of embryos, laws that prohibit gamete donation and surrogacy, and even laws that prevent genetic selection and cloning would all be invalid because they all inhibit reproductive autonomy. Only ARTs that inflict serious harm upon the parties involved or the resulting child could be constrained under this vision of the Constitution.
